When punishment fails

In Victoria the murder of Jill Meagher by a man who had been granted parole while serving his sentence for a previous violent sexual crime aroused community concern about parole. It followed other similar violent incidents. The Government commissioned a report which has now been released. It identified faults in an under-resourced system.

Behind the discussion of parole lies a series of tensions within Australian society. The first tension is between different ways of relating punishment to crime. Some see punishment as primarily retribution for wrong done. The severity of the punishment is measured to the seriousness of the wrong committed. Others see it primarily as a measure to protect society from people whose attitudes and actions threaten public safety. The severity of the punishment is then measured by the extent to the threat to society.

Punishment can also be seen primarily as a means to the reform of the criminal. From the time when imprisonment became the preferred form of punishment for crime instead of a holding pen for those awaiting trial and punishment, the reform of the criminal has received more emphasis. The type and severity of punishment will be influenced by the likelihood of reform.

Parole fits into this framework of reform. Initially prisoners were offered opportunities for study and work. Cooperative behaviour could lead to an early release. Prisoners sometimes graduated from a more severe to a less harsh regime and were supervised after early release for good behaviour.

Within the Victorian penal system, most prisoners are eligible to seek parole. Their cases are examined to ensure that the person does not pose a serious risk of endangering the community, and their behaviour is monitored while on parole.

From the prisoner’s point of view, parole offers a respect for their human dignity that other aspects of prison life sap. It offers hope that if they work to build good social connections in prison they will see their sentence reduced. If they are released on parole, they will find some support in making the demanding transition to a life in a changed and often under-resourced community.

A second source of tension arises from financial considerations. Where a retributive view of punishment prevails and is reflected in longer sentences and less flexibility in sentencing, the heavier will be the costs incurred in building and staffing prisons. Parole then becomes attractive because it reduces the number of people imprisoned and the financial burden on society.

But if it is to be effective parole demands well-resourced and informed judgments on applications for parole, and people who can relate well to those who are paroled. This demands proportional funding from governments. If their dominant view of punishment is retributive, they will be tempted to reduce eligibility for parole without funding the forms of connection that could make it work.

A third source of tension lies between the trust and freedom that are the conditions of human growth and the reluctance to take risks that characterises contemporary culture.

Human beings begin to recognise their responsibility to others when through relationships they can recognise their own hope to live generously, and can see the conflict between their desire and the way in which they habitually act. If they are to nurture these generous desires they must be trusted.

But a society that is averse to risk will simply judge that criminals can never be trusted to reform, and so should always serve their full sentences. Indeed, they may even be held in indefinite detention if they are judged a threat. For prisoners, of course, this distrust by society is likely to be reciprocated and so increase risk.

When seen within this complex framework it is clear that no easy fix to the parole system will guarantee that the community will be completely safe. Certainly, providing greater resources and perhaps providing an extra layer of scrutiny before releasing violent sexual offenders on parole may be helpful. But paroled prisoners form only a small fraction of those who put society at risk.

The best way to protect the community is to encourage change in those found guilty of crimes. Punishment does not generally do this. People only discover that change is possible through supportive relationships, such as those with welfare officers in prisons, on parole and after release. But this work cannot be done without resources.

From this broad perspective the largest threat to the security of the community comes from a view that sees punishment entirely in retributive terms. Unless the human development of prisoners is seen as central, imprisonment simply begets further risk to the community and swallows all the resources that could build a safer society. Like suspended sentences the institution of parole is a candle that illuminates a better way.

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Andrew, you make no mention nor leave any place for punishment to have any moral dimension. If one is take you at your word then punishment becomes solely about what works to change people's behaviour, rather than what is just. Punishing someone on the basis of what they deserve, rather than what will apparently work to correct their behaviour, allows the propriety of punishment to be a moral question rather than a technical one - something you have failed to address. The ramifications of your thoughts show how rehabilitation, often thought of as a liberal alternative to traditional punishment, can give the state free rein to interfere in the lives of offenders, even long after they have paid their debt through doing time. How does this offer a respect for the human dignity for offenders?DavidSt | 28 August 2013

Recently I was having dinner with my son, a law graduate, and out of the blue he started talking about Anita Cobby and the horrific circumstances of her death. He knows that I am not in favour of capital punishment and asked if I would make an exception for that case. I said that I would consider an exception in that case, which probably does me no great credit. I think the introduction of victim impact statements into the justice system has been important. The likelihood of reform of perpetrators should be a matter for painstaking and prolonged assessment. And any failures can produce great tragedy. Changing a system from retributive to focussing on the human development of prisoners would require committed investments in highly qualified people, much greater financial resources and a sense of trust imparted to another human being who has probably destroyed the trust of a grieving family. If we are to be a compassionate society then those investments should be made.Pam | 28 August 2013

I do think that the risk to the community should be taken very seriously and this should be the major criteria when prisoners are released. Perhaps this should even be the only reason for incarceration! There ARE other ways to punish. Patricia Ryan | 29 August 2013

One of the questions that our society never seems to address is 'Who deserves to pay in punishment or in kind for this crime?"john frawley | 29 August 2013

To look seriously at penal reform, which includes appropriate punishment (deprivation of civil liberties, mayhap?) ; rehabilitation ("reform") and parole (when no danger to others in society) I think you have to look outside the narrow boundaries of both our traditional British inherited justice system and the increasing American influenced privatisation of prisons. Neither of these seem to work. Scandinavian countries, like Norway, seem to be far more effective here on all counts. Of course, as with other social welfare provision, they spend a lot more on these. Edward F | 29 August 2013

Thank you for your thoughtful comments, David. It will take another article to do justice to them, of course. But a few thoughts. I do want to leave space for retribution in punishment, which does represent one dimension of the moral quality of punishment, but not for it to be the sole dominant consideration.
A crime does involve an injury to other individual human beings and society. It can be seen properly to create a debt that needs to be paid. This supposes that the moral dimension of crime and punishment lies in the effect both have on relationships between criminal and victim, between criminal and the trust in personal security and public relationships on which society rests.. So we need to ask ethically what punishment recognises and helps restore the relationships that are broken in crime.
From that perspective protecting the community, the reconciliation of those injured in crime and the conversion of the criminal are all moral dimensions and aspirations of punishment. No punishment can be guaranteed to secure them, but punishment that does not do so must be reckoned a perhaps inevitable failure, and punishment that does not look to them reckoned a failure of the moral imagination.Andy Hamilton | 29 August 2013

Great article, Andrew, which presents a rational attitude to an issue on which the community is usually anything but rational.
Of course, the community deserves the most complete protection, but retribution should not be the only aim. An eye for an eye just means more than one person ends up blind.
The "Sunday Mail" in Qld (Murdoch, what else?) has been running another whip-up-the-outrage campaign these last two weeks about special diets (including gluten-free) for prisoners. Of course, we now have "pensioners" writing the usual letters about wishing they could live in the holiday resort that is jail. (Are people really that naive?)
The bread and water brigade completely ignore the fact that for some people, a special diet is not a fashion statement, but a matter of survival and the consequences of not following the diet for some who really need it, such as true coeliacs, is the eating away of the small bowel lining, and cancer down the line.
I am sure that a bit of extra-judicial capital punishment by diet might find approval with some of our law and order fanatics, but it would hardly be a good addition to the justice system.
Maintaining some dignity is crucial to those capable of being rehabilitated, and I agree with Edward that the English speaking jurisdictions are still largely mired in the Dark Ages, and that the Scandinavian countries run rings around them for successful rehabilitation of offenders.
Paul | 29 August 2013

In the modern world we cannot divorce the criminal justice system from such aspects of life as education, health, and the support of extended family structures. taxpayer money should be spent wisely on building a just society, sharing wealth and eliminating poverty.John ozanne | 29 August 2013

Andrew, I wonder if DavidSt is not, perhaps being a little naive in positing the question about punishment having a "moral dimension". An immediate problem would be whether the person being punished understood this "moral dimension". I believe the modern theory, backed up by scientific research, is that many criminals don't. This deficiency, I believe, is not moral per se but psychological. Modern psychologists working in the area seem to be of the opinion that this internal tendency might be able to be picked up at an early stage and suitable remediation commenced which might lead to fewer offences. Edward F | 29 August 2013

By all means we should have an effective rehabilitation programme. But we need to exercise common sense when considering offenders for parole. The case Andrew quotes is an example for which prior history should have been a clear indicator that parole was inappropriate, because the offender was not being rehabilitated. It seems unlikely even the best-resourced rehabilitation programme would have made any difference for him. He remains a danger to the public if released, as evidenced by the number of times he re-offended.
Adrian Bayley’s criminal history before he raped and murdered Jill Meagher in 2012 while on parole includes:
• He had served a total of 11 years in prison for the rape and attempted rape of 8 women
• When he was 19 he raped 2 teenagers and attempted to rape another.
• He was jailed, but faked his way through a sex offender program to get early release.
• In 2000 he raped 5 prostitutes over a 6-month period.
• He was jailed for a minimum of 8 years over the attacks.
• In 2012 while on parole, he assaulted a man in Geelong (not a sex crime)
When do we say enough is enough?Frank S | 29 August 2013